There are, however, district courts that
are not applying the Fair Sentencing Act to pending cases, including United
States v. Derrick Steven Clemons, CR No. 08–028–AJS–1 (W.D. of Pa. Nov. 18,
2010) and United States v. Anthony L. Jackson, CR No. 10–178–JRS–1 (E.D. Va.
Nov. 19, 2010).

(4)

According to the U.S. Sentencing
Commission’s analysis, 20,905 offenders would receive a reduction in their
sentences if both the statutory changes and guideline changes were made
retroactive, and the average sentence reduction would be 46 months,
representing a savings of over $2.2 billion at an average incarceration cost of
$28,284 per year, the latest yearly cost estimate from the Bureau of
Prisons.

(5)

The purpose of
this Act is to clarify that the amendments made by the Fair Sentencing Act are
to be applied to pending cases and retroactively to cases that are no longer
pending.

in cases in which a sentence has not yet
been imposed, the court shall impose such sentence as if sections 2 and 3 of
the Fair Sentencing Act of 2010 (Public Law 111–220) were in effect on the date
the offense was committed; and

(2)

in cases in which a sentence has already
been imposed, if subject to a pending appeal on or after August 3, 2010, the
Court of Appeals shall remand the case for resentencing consistent with the
amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public
Law 111–220).

4.

Court may reduce
term of imprisonment

In the
case of a defendant who has been convicted of a crime committed before August
3, 2010, for which a term of imprisonment has been imposed, on motion of the
defendant or the Director of the Bureau of Prisons, or on its own motion, the
sentencing court may reduce the term of imprisonment for that crime consistent
with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010
(Public Law 111–220) if such crime is—

(1)

punishable by a term of imprisonment
under—

(A)

section 404(a) of the Controlled Substances
Act for possession of a substance which contains cocaine base (21 U.S.C.
844(a)) (as in effect on the date of the commission of the crime);

punishable by a term of imprisonment under
paragraph (1)(C) or (2)(C) of section 1010(b) of the Controlled Substances
Import and Export Act (21 U.S.C. 960(b)) (as in effect on the date of the
commission of the crime).